Because of changes in demographics and other reasons, employees are increasingly asking for changed work schedules or time off work to care for children and elderly parents.

Depending on the size of the business and the employee’s duties these requests can create real problems. As a result, employers often ask us whether a request for changed hours or time off work must be accommodated.

The legal landscape has been shifting in this area for a number of years. This blog discusses the applicable legislation and some recent case law.

Discrimination on the basis of family status.

Statute law

The Ontario Human Rights Code

Section 5 of the Ontario Human Rights Code (the “Code”) provides that a person has the right to equal treatment with respect to employment without discrimination because of family status, which is defined as a parent child relationship. This includes a parent caring for a child (i.e child care) and a child caring for a parent. (ie. elder care). Section 11 of the Code provides, in part, that an employer must accommodate a request to change a job requirement, or qualification because of family status unless it results in undue hardship.

Case law

The Johnson test

Until a 2014 decision of the Federal Court of Appeal (the “Johnson Test”), there were at least three different legal tests that judges and adjudicators applied when deciding whether an employer had discriminated on the basis of family status and was required to accommodate a child care or elder care request. The Johnston Test provided that in order to establish discrimination, in the context of childcare, an employee must prove:

1. The child is under his or her care and supervision;
2. The childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to personal choice;
3. The individual has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
4. The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

The Misetich test

A recent decision by an adjudicator under the Code refused to follow the Johnston Test which means the law in this area is yet again clear as mud.

In Misetich v Value Village, Value Village asked the employee to prove that she satisfied each of the requirements from the Johnston Test.

The adjudicator rejected the Johnston Test because she believes it imposed a higher burden on people claiming discrimination based on family status, compared to other grounds of discrimination. First, she believes it is improper to limit human rights protections to legal responsibilities. In this regard, she rejected the second requirement of the Johnston test. Second, she believes the test for whether discrimination exists should not consider accommodation issues. In this regard she stated: “Requiring an (employee) to self-accommodate as part of the discrimination test means the applicant bears the onus of finding a solution to the family/work conflict; it is only when he/she cannot that discrimination is established.” In this regard, she rejected the third requirement of the Johnston Test.

Application of Misetich test

Ms. Misetich had a physical disability. The employer proposed accommodating this disability by transferring her to another job with modified working hours which involved some evening work. She refused the transfer because she claimed she had to take care of her elderly mother.

The employer asked Ms. Misetich for information to substantiate her claim that she had eldercare responsibilities. The only information she provided was an assertion she had to prepare her mother’s evening meals. She also provided a doctor’s note which stated: “This is to confirm that Tonka Misetich cannot work outside her normal hours because she has to take care of her mother.”

The adjudicator concluded Ms. Misetich could have worked days, evenings and weekends and still provided meals for her mother. In addition, “The applicant was required to provide sufficient information to substantiate her eldercare responsibilities. She failed to do so.” Accordingly, she found that the modified shifts that Value Village proposed did not discriminate against Ms. Misetich on the basis of her family status.

Lessons to be learned:

1. Any request for a changed work schedule or time off work because of child care or elder care responsibilities should be taken very seriously.
2. An employee cannot simply assert they need modified hours because of family status and provide no information to the employer.
3. The law relating to accommodating an employee on the basis of family status is in a state of flux and so an employer should seek advice from an employment lawyer if an employee makes this kind of request.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]